Constitutional challenge to new childcare law fails at
appeals court level
A woman who in 1991 was convicted for failing to report income on her
food stamp applications can no longer hold a childcare provider license
under relatively new law effective in 2010.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
April 24, 2012
– A state appeals court recently upheld a law that prohibits those
convicted of “fraudulent activity” involving public
assistance from ever holding a childcare provider license, despite the
argument that the law is not rationally related to the goal of
In 2010, the Department of Children and Families revoked Alma
Brown’s license to run a childcare center providing care to four
or more children under the age of seven, citing a law that bars issuance
or continuation of such licenses to individuals convicted of certain
The law, 2009 Wisconsin Act 76 (effective February 2010), prevents
anyone convicted of fraudulent activity related to public assistance
benefits from ever holding the childcare license, regardless of whether
the individual can demonstrate that he or she has been
In 1991, Brown was convicted for failing to report income on food stamp
applications, despite working at Marshall Field’s during the
holiday season in four consecutive years starting in 1986.
That conviction served the basis of the Department’s 2010 notice
of revocation to Brown, who was running a childcare center in Milwaukee.
Brown appealed. The Division of Hearings and Appeals upheld the
revocation, and the circuit court affirmed.
v. State of Wisconsin Department of Children and Families,
2011AP1350 (April 24, 2012), the District
I Wisconsin Court of Appeals affirmed the circuit court
despite Brown’s argument that the law violated her due process and
equal protection rights.
Brown argued that the law did not rationally relate to the
government’s interest in protecting children. Specifically, she
said there is “no rational basis for believing that those
convicted of nonviolent financial crimes pose any real threat” to
“Regardless of whether the law is rationally related to the goal
of protecting children, the law is rationally related to the legitimate
purpose of prohibiting individuals who dishonestly benefitted from government welfare in the past
from obtaining government funding in the form of childcare
subsidies,” wrote Judge Patricia Curley. “The State has a
legitimate interest in not providing taxpayer funds to those who have
previously defrauded the government.”
The appeals court rejected Brown’s argument that, as applied to
her, the law is unconstitutional because it fails to consider that she
can now be trusted with childcare funds.
“While Brown’s particular situation – a single
welfare conviction for events occurring more than two decades ago
– is unfortunate, she points to no evidence that she was treated
differently from any similarly-situated childcare provider whose license
was revoked under the new law,” Judge Curley explained.
The appeals court rejected Brown’s argument that she is excluded
from an entire profession in violation of her due process rights, noting
that Brown can still provide childcare, just not under the circumstances
requiring the specific childcare license at issue in the case.
“Rather, she has only been excluded from operating as a licensed
childcare provider under Wis. Stat. §
48.65,” Judge Curley explained.